United States, Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers, Association (Union)

[ v58 p175
]

58 FLRA No. 43

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

0-AR-3432

_____

DECISION

November 7, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Paul J. Fasser, Jr. filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator upheld the grievance, finding that the Agency violated the parties' agreements and its own regulations by failing to assign Controllers-in-Charge (CIC) on midnight shifts at Air Route Traffic Control Centers (ARTCC). The Arbitrator ordered the Agency to comply with the agreements and the regulation and to pay the 10 percent premium pay required by the contract to those employees who were improperly denied assignment as CIC on the midnight shift.

For the reasons that follow, we find that the Agency has established that the award is deficient because it impermissibly affects management's right to determine its organization contrary to § 7106(a)(1) of the Statute. Accordingly, we grant the Agency's exceptions and set aside the award.

II. Background and Arbitrator's Award

A. Background

The Arbitrator states, and the parties do not dispute, that the Agency has historically "used a Controller-In-Charge [CIC] to provide watch supervision where a [ v58 p176 ] Supervisor is not available." Award at 2. In this regard, Article 18 of the parties' 1998 collective bargaining agreement provides that: (1) the CIC is intended to provide watch supervision for the continuous operation of an area where a supervisor is not available; (2) CICs are used when necessary to supplement the supervisory staff; (3) CIC premium pay will be paid at the rate of 10 percent of the applicable hourly rate for every hour, or portion thereof, that an employee serves as a CIC; (4) unit employees will complete CIC training before being assigned such duties; and (5) a roster of employees trained in, and qualified for, CIC duties will be maintained. [n1]

When management decided to reduce the supervisory ratio at its facilities, the parties negotiated a Memorandum of Agreement (MOA) that provided, among other things, that before reducing the number of supervisors, each facility must have completed the CIC selection process and have available a sufficient number of CICs who have completed the required training and certification.

Further, in FAA Order 7210.3 (FAA Order), the Agency prescribed the conditions governing watch supervision, including the use of CICs. Specifically, the regulations provide that watch supervision may be performed by managers, supervisors, or CICs. Individuals are considered "available for watch supervision" when they are "physically present in the operational area" and are "able to perform the primary duties of the function." [n2] Award at 6, quoting FAA Order § 2-6-2.g. See also § 2-4-2.e. Moreover, the regulations require that when a supervisor or CIC leaves the operational area, or is engaged in an activity that will preclude the performance of watch supervision duties, another qualified individual shall be designated to supervise the watch. See id. The regulations state that an air traffic control room "is divided into easily managed segments or areas of operation." Award at 8, quoting FAA Order § 6-1-1. An operational area is defined as "a group of sectors requiring the service of" Air Traffic Controllers (ATCS). Id., quoting FAA Order § 6-1-1. The term "area of specialization" is defined as "a group of interrelated sectors on which an ATCS is required to maintain currency." Id. quoting FAA Order § 6-1-4.

A management evaluation of the operations of the New York ARTCC disclosed that supervisors were failing to designate CICs on the midnight shift whenever they left an operational area. As corrective action, supervisors were ordered to comply with the FAA Order.

The Union filed a grievance concerning the failure of management at the Washington ARTCC to comply with the FAA Order. The Union alleged that supervisors on the midnight shift at that center failed to assign CICs whenever they left an operational area or were precluded from performing their supervisory duties. The grievance was consolidated with similar grievances from other ARTCCs and submitted to arbitration.

B. Arbitrator's Award

The Arbitrator stated the issue, as framed by the Union, as follows:

Has the Agency violated the Collective Bargaining Agreement and/or FAA Orders by failing to provide Controller-in-Charge
(CIC) coverage on the mid-shift at its en-route centers? And if so, what is the appropriate
remedy?

Award at 12. The Arbitrator noted that the Agency would expand the issue to include the question of whether there is
an employee entitlement under the agreement to assignment of CIC duties.

The Arbitrator found that, under the FAA Order, "an entire Control Room cannot be considered to be a single operational area." Award at 18. He stated that the regulation clearly provides that "clusters of sectors should comprise an area of specialization or area of operation." Id. He also found that "the scope of the supervision should be no greater than an operational area." Id. According to the Arbitrator, the FAA Order, the 1998 Agreement, and the MOA require that "whenever a Supervisor is not available to be physically present on the midnight shift in an operational area, a Controller will be designated as the CIC until a Supervisor is available." Id. at 19. Consequently, the Arbitrator concluded that "when the Agency failed to have a Supervisor or a CIC physically present in an operational area on the midnight shift at the [ARTCCs], it violated its own rules," the 1998 agreement, and the MOA. Accordingly, the Arbitrator granted the grievance. Id.

In considering the remedy, the Arbitrator noted that it would be "virtually impossible" to make the CICs on the midnight shift whole for lost wages and benefits because of the difficulty in quantifying their losses. Id. The Arbitrator ruled, however, that "because the Agency is responsible for the violation, it is liable for failing to pay the 10 percent premium" required by the [ v58 p177 ] parties' agreement. Id. at 20. The Arbitrator also ordered the Agency "to use, as near as possible, the New York Center model to bring all of the Centers into compliance [with the FAA Order] on the midnight shift." Id. at 21. He retained jurisdiction for 120 days from the date of the award in order to assist the parties "in resolving differences, if any, that may arise in regard to the application of th[e] Award[.]" Id. at 21-22.

III. Positions of the Parties

A. Agency's Exceptions

Citing United States Dep't of the Treasury, Bur. of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the Agency argues, as a threshold matter, that the award affects management's right to determine its organization, under § 7106(a)(1) of the Statute. Specifically, the Agency contends that, "[b]y defining the area of operation and restricting management from consolidating the control room into a single operational area," the award affects its right to determine its organization. Exceptions at 9. The Agency asserts that its determination of "the number of operational areas [to be used] on any given shift" constitutes an exercise of its right under § 7106(a)(1). Id. at 6. The Agency also asserts that, pursuant to § 7106(a)(1), it has the right, on the midnight shift, "to consolidate the control room into one operational area and utilize one Supervisor (Watch Desk Supervisor)." Id. at 4.

The Agency claims that, under prong I of the BEP framework, the Arbitrator's award does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute. Specifically, citing United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992), the Agency claims that "denial of the opportunity to work CIC duties does not constitute" an adverse effect flowing from the exercise of a management right. Exceptions at 6. The Agency also claims that the award abrogates management's right to determine its organization under § 7106(a)(1).

As to prong II of the BEP framework, the Agency asserts that the award does not constitute a proper reconstruction because, rather than assigning CIC duties to unit employees as required by the award, it could assign them to other personnel. [n3]

B. Union's Opposition

The Union challenges the Agency's claim that the award affects management's right to determine its organization. Specifically, the Union notes that the Arbitrator determined that the control room floor cannot constitute a single operational area and contends that the Agency's claim is "unsupported by the Arbitrator's findings, by FAA directives as well as the uncontraverted evidence presented at the hearing." Opposition at 6. According to the Union, the Arbitrator "found no more and no less than what the documents and evidence dictated" since the FAA Order "sets forth the requirement for multiple areas." Id. Moreover, the Union cites testimony from witnesses at various ARTCCs establishing the existence of numerous operational areas within the control rooms at their centers and argues that the Authority does not disturb an arbitrator's findings of fact. [n4]

IV. Analysis and Conclusions

A. Standard of Review

When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DoD, Dep'ts of the Army and the Air Force, Ala. National Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

When resolving an exception that alleges an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Business Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority will apply the framework established in BEP. Under prong I of the BEP framework, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. See id. Under prong II, the Authority considers whether the award [ v58 p178 ] reflects a reconstruction of what management would have done had management not violated the law or contractual provision at issue. See id.

B. The award affects management's right to determine its organization under § 7106(a)(1) of the Statute

Management's right to determine its organization under § 7106(a)(1) of the Statute encompasses the right to determine the administrative and functional structure of the agency, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See, e.g., ACT, New York State Council, 56 FLRA 444, 449 (2000). That is, this right includes the authority to determine how an agency will structure itself to accomplish its mission and functions. Id. It also includes the right to determine how the agency will be divided into organizational entities such as sections. See, e.g., NTEU, Chapter 83, 35 FLRA 398, 410 n.5 (1990) (citing Congressional Research Employees Association, 3 FLRA 737, 737-38 (1980) (CREA)). The Authority has applied these principles to preclude negotiation on proposals that prescribe the numbers of sections an agency will employ to carry out its functions and the scope of supervisory authority over those sections. See CREA. See also Local Lodge 830, IAM and Aerospace Workers, AFL-CIO, 20 FLRA 848, 849 (1985) (citing National Association of Government Inspectors and Quality Assurance Personnel, Unit #2, 8 FLRA 144 (1982)) and CREA.

In this case, the Arbitrator found that, at several ARTCCs, the Agency violated the FAA Order by grouping operational areas on the midnight shift under one supervisor and, consequently, also violated the parties' collective bargaining agreement and MOA, by not assigning CICs. The Arbitrator ordered the Agency, on the midnight shift, to maintain each operational area that is established on the other two existing shifts, assign a supervisor to each such area, and assign a CIC in each area when a supervisor is not available.

The Arbitrator's order is determinative of the organization of the midnight shift because it specifies the nature and scope of the supervisory relationships, or lines of authority, on that shift. [n5] Consequently, consistent with the Authority precedent set forth above, we find that the award affects management's right to determine its organization under § 7106(a)(1) of the Statute. See also NAGE, Local R1-109, 53 FLRA 526, 531-32 (1997) (proposal precluding consolidation of different functional segments of an agency affects the exercise of management's right to determine its organization).

Management's rights under § 7106(a)(1) of the Statute are not subject to the applicable law exception that applies to rights under § 7106(a)(2). See, e.g.,AFGE, Dep't of Education Council of AFGE Locals, 38 FLRA 1068, 1075-76 (1990) (Dep't of Education), enforcement denied on other grounds sub nom. United States Dep't of the Interior, Minerals Management Service, New Orleans, La., 969 F.2d 1158 (D.C. Cir. 1992) (proposals requiring the exercise of § 7106(a)(1) rights in accordance with the Constitution held to affect those rights). Consequently, the FAA Order does not constitute an external limitation on the exercise of the Agency's right to determine the organizational structure of the midnight shift that is enforceable in arbitration. See, e.g., NFFE, Local 28, 47 FLRA 873, 878-79 (1993); NFFE, Local 1482, 44 FLRA 637, 645-47 (1992). See alsoDep't of Education, 38 FLRA at 1076 ("section 7106(a) of the Statute does not, standing alone, empower unions to enforce through collective bargaining any `external limitations' on the exercise of management's rights under section 7106(a)(1), including those contained in applicable laws").

Moreover, although neither party has addressed the applicability of the Authority's decision in Federal Employees Metal Trades Council, AFL-CIO, 25 FLRA 465 (1987) (FEMTC), we do so briefly to clarify a point regarding management's exercise of its § 7106(a)(1) rights, such as the right to determine its organization.

In FEMTC, the Authority considered the negotiability of proposals providing that new employees would have the option of receiving paychecks by hand delivery, in addition to the agency's practice of mailing paychecks to employees' work addresses. The agency had a regulation that authorized the granting of individual exceptions to the mailing of paychecks to employees' work addresses. The Authority found, in part, that because the regulation already provided for such exceptions and the agency's current organizational structure contemplated such exceptions, the proposals would not require the creation of any additional organizational structure and, therefore, did not affect the agency's right to determine its organization.

This aspect of FEMTC could be read to support a conclusion that the award in the case before us does not affect the Agency's right to determine its organization [ v58 p179 ] under § 7106(a)(1) because the award simply enforces the Agency's regulation (the FAA Order). [n6] However, insofar as FEMTC suggests that an agency's right under § 7106(a)(1) to determine its organization is not "affect[ed]," within the meaning of § 7106(a), as long as it is exercised in a manner consistent with its regulation, such a reading would no longer be correct in light of post-FEMTC cases and it will no longer be followed. As the Authority subsequently held in Dep't of Education, based on the Supreme Court's decision in Dep't of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990), nothing in § 7106(a) requires management, in the context of a collective bargaining relationship, to exercise its rights under § 7106(a)(1) in accordance with applicable laws. Dep't of Education, 38 FLRA at 1076.

Further, we find nothing from which to conclude that provisions of the FAA Order or of the parties' collective bargaining agreement or MOA constitute enforceable limitations on management's rights under § 7106(b) of the Statute. [n7] The Arbitrator did not find that the FAA Order or the provisions of the parties' collective bargaining agreement or MOA on which he relied constituted provisions that had been negotiated pursuant to § 7106(b). Moreover, nothing in the record supports the conclusion that the limits on management's right to determine its operational structure found by the Arbitrator in the FAA Order and the parties' collective bargaining agreement and MOA constituted such provisions. See United States Dep't of Health and Human Services, Health Care Financing Administration, 57 FLRA 462, 463 (2001); NLRB, 54 FLRA 56, 63 (1998).

Accordingly, because the Arbitrator: (1) improperly enforced an external limitation on the exercise of management's § 7106(a)(1) right to determine its organization; and (2) did not find a violation of a contract provision negotiated pursuant to § 7106(b), the award fails to satisfy prong I of BEP. Consequently, as the award fails to satisfy prong I of BEP, we find that the award is contrary to law under § 7122(a)(1) of the Statute.

V. Decision

The award is set aside.

APPENDIX

Section 1. The CIC is intended to provide watch supervision for the continuous operation of a facility or area
where a supervisor is not available. Assignments of employees to CIC duties are used when necessary, to supplement
the supervisory staff.

Section 2. When assigned CIC duties, an employee shall be given sufficient authority to fulfill the responsibilities
of the assignment. General guidance and goals for the shift shall be conveyed in facility directives and/or
during the shift/area position briefing.

Section 3. CIC premium pay shall be paid at the rate of ten (10) percent of the applicable hourly rate of basic
pay times the number of hours and portions of hours during which the employee is assigned CIC duties. This
premium pay is paid in addition to any other premium pay granted for overtime, night, Sunday work and in
addition to hazard pay differential.

Section 4. Prior to being designated as a CIC, an employee shall have been facility/area rated/certified for at
least six (6) months and shall be operationally current. A Union representative shall be a member of the panel
designated by the Employer to recommend CIC candidates. The panel shall forward its recommendations to the
Employer or his/her designee for selection. The Employer retains the right to select Controllers-in-Charge.

Section 5. Employees who are not selected to be a CIC, upon request, shall be advised of the reasons for non-
selection. When applicable, specific areas the employee needs to improve to be considered for the CIC position
shall be identified.

Section 6. At facilities where CIC duties are performed, bargaining unit employees shall complete the national
CIC training course prior to assignment of such duties.

Section 7. Each facility shall maintain a roster of bargaining unit employees qualified to perform CIC duties.
When CIC duties are to be performed, assignments shall be made on an equitable basis. [ v58 p180 ]

Section 8. When other qualified bargaining unit employees are available, Union representatives shall not be
required to perform CIC duties.

According to the record, the version of the regulation in effect at the time of the grievance was FAA Order 7210.3P.
The regulation in effect at the time of the arbitration was FAA Order 7210.3R. The differences in the two regulations
are not material to this case.

Footnote # 1 for
58 FLRA No. 43
- Authority's Decision

Relevant portions of Article 18 are set forth in the Appendix to this decision.

Footnote # 2 for
58 FLRA No. 43
- Authority's Decision

The duties of watch supervision are specified in FAA Order, § 2-6-1, set forth in the Appendix to this decision.

Footnote # 3 for
58 FLRA No. 43
- Authority's Decision

The Agency makes additional arguments concerning the right to direct and the Back Pay Act. However, consistent